These were my notes from the KEI intervention on Tuesday, May 10, 2022, at WIPO SCCR 42, on the proposed WIPO broadcasting treaty.
This is essentially a related rights treaty, and goes far beyond the control of signal piracy. And it no longer is limited to traditional broadcasting in any way. The only obligation to qualify as a broadcaster concerns “assembling and scheduling” content. (Article 2(D)). That’s it.
This is a treaty that will apply to Internet streaming, whenever a streaming company can claim to have scheduled content, which is a low bar.
There is no need for a 20 year term for broadcasting rights to protect broadcasters from piracy. Effective protection can be offered without neighboring rights, such as through telecommunications law, or the penal code.
Any durable term effectively deals with post fixation rights, which should be addressed through copyright or related rights for performers or producers of the content. If the broadcaster wants post fixation rights, they need to obtain them from holders of authors or perform rights.
KEI opposes the new rights by broadcasters for deferred broadcasts, and we note that this right in the current draft extends even to works that a broadcaster did not create, license or even remunerate, and to works in the public domain or to works released under creative commons licenses.
The proposed exceptions are narrow and inappropriate in particular if the broadcaster has effective post fixation rights. There are no mandatory exceptions, and the special exceptions in the Rome Convention are absent.
There is no need for the treaty to outlaw the use of formalities if related rights are created. Formalities were permitted in the Rome Convention, and may be appropriate to limit the unintended damage from a thicket of rights or orphaned works, particularly if the right is extended to works streamed on the Internet, as is proposed in the current text.
We ask that the WIPO Office of the Chief Economist be asked to present information to SCCR 43 on the impact of the proposed rights on the distribution of income between authors, performers and producers and broadcasters and audiences, and between countries, particularly as it relates to any extension of the rights to the global streaming services like Netflix, Amazon Prime, Spotify, etc..